Remembering Robert Bork/updated and corrected

Robert Bork died today at the age of 85. We wish him the best in the afterlife. In this life, I regret to say, he was consistently on the side of doing wrong when it came into contention with doing what was right.

Bork first came to prominence for his participation in the coverup of Watergate. When Nixon ordered the Justice Department, then under Elliott Richardson, to fire the special prosecutor who was investigating Nixon’s misdeeds, Richardson refused, as did his deputy William Ruckelshaus. Both resigned rather than be part of Nixon’s attempt to save himself. Bork had no such scruples (he claims he did so in consultation with Richardson and Ruckelshaus and for the good of the nation, but this is doubtful [Correction: Eliot Richardson confirmed that he approved what Bork did.).

To conservatives, Bork is a hero. After Bork’s nomination to the Supreme Court by Ronald Reagan was defeated, Ted Kennedy in a moment of hubris, boasted that he had “Borked” the nominee. So conservatives, choosing to avoid the totality of the record, have seen Bork as a martyr to liberalism. What conservatives forget is that Bork was rejected 58-42, a bipartisan majority, and the largest majority recorded against any nominee to the Court.

Bork seems primarily to have been an opportunist. In an interview with the DC Bar, he says that as a young man, when socialism was ascendent, he was a socialist. During World War II, he was a college student. He partied until the last days of the war, when he enlisted. He was going to be a labor lawyer until the political climate changed, and then he joined Kirkland & Ellis, a macher corporate law firm.

He got on the faculty of Yale law, where he says he was treated well by the liberal faculty (not that Yale Law has ever been particularly liberal). And then, he says, the “uprising” (the protests of the 1960s) brought an end to all that good feeling. Bork, of course, went with the side that supported repression, and so ended up as Solicitor General for the Nixon Administration. After all, what are the ideals of conservatism if not massive concentration of power under the Executive, illegally making war, spying on the citizens, and criminal acts up to and including murder? Bork left that Administration fundamentally unrepentant:

BR: When you look back on the Nixon presidency, what do you feel?

RHB: I feel sad. Nixon had the intellectual equipment to be a great president. But he destroyed himself. And for what? I never would have believed that the president had something like the “Plumber’s Unit” in the White House, breaking into Daniel Ellsberg’s psychiatrist’s office and all of that nonsense. It was not only wrong, it was so foolish. So unnecessary.

Unnecessary? How about alarming? or dangerous? or criminal? There is no hint of indignation in Bork’s comments on Nixon.

But beyond the opportunism, there was something darker, and this was what was behind his rejection by a bipartisan majority of the Senate. The Washington Post:

At Yale, Judge Bork quickly became the conservative movement’s Ivy League voice. He wrote a critique of the constitutionality of the 1964 Civil Rights Act for Sen. Barry Goldwater, and he became a member of Scholars for Goldwater when the Arizona Republican became his party’s presidential nominee in 1964.

Judge Bork wrote an influential law journal article in 1971 outlining a school of legal thought later known as “intentionalism.” He argued that judges should confine themselves to the “original intent” of the framers of the Constitution in determining what kinds of actions should be protected by the law. He also maintained that only “political speech” could be protected by the First Amendment.

Throughout his career as a legal scholar, Judge Bork repeatedly criticized a 1965 Supreme Court decision, Griswold v. Connecticut, in which a state law prohibiting married couples from using contraceptives was struck down. The court ruled that the state law was unconstitutional because it violated a constitutional right to privacy.

Judge Bork maintained that the constitution held no such provision.

The idea of “intentionalism” is a bit scary. It holds that what the Founders thought overrules any subsequent developments. Under what theory could one oppose the 1964 Civil Rights Act…

To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

…if not the belief that the Founders’ endorsement of slavery trumped the Civil War, the 13th, 14th, and 15th Amendments, and the bitter struggle of the 1950s and 1960s to end Jim Crow? According to Nancy MacLean, this is what he wrote:

Robert Bork argued that it was sophistry to distinguish property rights and
human rights; property rights were human rights of the highest order and “individual liberty”
depended on their sanctity. The issue, he said, “is not whether racial prejudice is a good thing but
whether individual men ought to be free to deal and associate with whom they please for whatever
reasons appeal to them.” For anyone to tell these white citizens “that even as individuals they may
not act on their racial preferences” was “unsurpassed ugliness.”

Similarly, opposition to Griswold was, even by the time of Bork’s nomination, bizarre. Contraception had been legally available for twenty years, having been declared constitutional by the very Court Bork was nominated to be on! Bork’s defenders have excused his writings as academic legerdemain, unrepresentative of what he would actually have done. But the reason the Senate rejected him was because they could not get him to state honestly what he believed. He sounded as if he was concealing a belief that his own views, masked as “intentionalism” could surmount every boundary imposed by the law. Robert Bork was not voted onto the Court because he sounded like a madman.

If one followed his subsequent career, that conclusion is confirmed. His book, Slouching Toward Gomorrah (a title of the greatest irony) is not a deeply intellectual work, but a bizarre pastiche of ignorance and demonization. Example:

On science: Bork claims that “the fossil record is proving a major embarrassment to evolution”,

My favorite passage is his claim that there was no real domestic opposition to Vietnam, that it was all the result of a communist conspiracy. Quoting an unnamed visiting professor, he says:

“the first eruptions could be traced to a radical ‘who had come down the Ho Chi Minh Trail from Berkeley.'”

It is no surprise to read later in the book that the killings of students at Kent State by Guardsmen who, facing no imminent danger, fired on unarmed protestors was “an inevitable tragedy.”

After all, if opposition to the Vietman War was simply a communist conspiracy, the deaths of protestors are simply enemy casualties. And Slouching Toward Gomorrah was not written in the heat of the Vietnam War, but decades after it had been recognized as a terrible mistake.

It should also be noted that he accepted the idea of criminalizing homosexuality:

In a letter to the faculty, he wrote that “homosexuality is obviously not an unchangeable condition like race or gender” and that such “behavior, it is relevant to observe, is criminal in many states.” Judge Bork’s arguments did not persuade the majority of the faculty.

At the time (1977), that was not a remarkable position in much of the country, but it does mark him as a man whose idea of liberty extended only to straight white males– like the Founders.

In many ways, the life of Robert Bork illustrates what is wrong with modern conservatism. Driven by opportunism and inflated with ignorance and hubris, it has ceased to represent a reasoned defense of traditional values and, like the Confederacy, has come to represent a desperate attempt to prevent necessary reform even at the cost of destroying the nation.

Thank God Robert Bork never made it onto the Court. The “intentionalists” there now, men like Scalia, are frightening enough.
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Added: A line from his Washington Post obituary struck me:

Late in life, after he had married his second wife, a former Catholic nun, Judge Bork converted to Catholicism.

“There is an advantage in waiting until you’re 76 to be baptized, because you’re forgiven all of your prior sins,” he said in a 2003 interview with the National Catholic Register. “Plus, at that age you’re not likely to commit any really interesting or serious sins.”

It sounds to me as if he had no intention to repent of the angry divisions which he sowed in life. In his mind, I suppose, he had done the minimum of what Christian “law” requires with the expectation of getting the full reward. I suppose this makes him an opportunist even in death. That is truly, truly tragic.
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